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By 


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A_  R  G  XJ  M  E  :^  T 


OF 


JOHN  LUTTRELL  MURPHY 


BEFORE    THE 


)N 


j^EW     jDlTY     j>^ALL     J::oMMISSIO] 

Delivered  on  the  5th  and  6th  of  September,  1880, 

IN    SUPPOET    OF    HIS    RESOLUTION    FOP. 

ON  THE  NEW  CITY  HALL, 

SAN  FRANCISCO. 


SAN  FEANCISCO  : 

Law  Printinc;  and  Publishing  Company,  rwNiEK.s, 

538  Sacramento  Street. 


*  ,f   •  ■" ' 


HJD 
133  h  ? 


ARGUMENT 

OF 

JOHN    LUTTRELL  MURPHY 

Before  the  Xew  City  Hall  Commission, 


Delivered  on  the  5th  and  6th  of  September,  1880,  iu  sujDport  of 
his  Resolution  for 


DA.Y     L^BOR 

On  the  New  City  Hall,  San  Francisco. 


To  the  Honorable  Board  of  New  City  Hall  Commissionei^s  for 
the  City  and  County  of  San  Francisco: 

Gentlemen  :  In  behalf  of  the  resolution  introduced  by  me 
in  your  honorable  body  on  the  day  of  August,  1880,  pro- 

viding for  letting  the  ordinary  mechanical  and  other  work 
upon  the  New  City  Hall  out  to  the  people  at  large,  by  the  day, 
instead  of  letting  it  out  to  a  few  of  the  people  only,  in  bulk, 
1  have  to  say : 

The  proposition  is  not  intended  to  work  any  very  great  or 
radical  change  in  the  general  plan  or  manner  of  building  the 
New  City  Hall,  but  only  in  a  conservative  spirit  to  enlarge 
and  improve  one  branch  of  that  service,  which  has  from  the 
start  been,  to  a  more  or  less  extent,  recognized  and  followed 
by  those  in  charge  of  the  work. 

The  proposition  is  not  to  do  away  with  the  contract  sys- 
tem entirely — nor  in  fact  at  all — but  only  to  change  the  mode 
of  contracting  in  one  of  its  features  only — that  in  relation  to 
Icdwr — and  only  as  to  a  certain  kind  of  labor  at  that. 

The  great  bulk  and  b}^  far  the  heaviest  portion  of  the  busi- 
ness of  constructing  the  Ncav  City  Hall  is  left  undisturbed, 
to  be  carried  on  as  heretofore  iinder  the  old  system,  such  as 
the  enormous  and  complicated  iron  work,  mill  loork,  foundry 

297075 


work,  machinery  work,  and  such  other  ivm'h  as  requires  tlie 
employment  of  machinery,  and  the  furmshinr/  of  the  vast 
sup2)lies  of  materials  of  all  kinds  used  in  its  construction. 

The  proposition  contemplates  the  contracting  directly  with 
the  mechanics  and  laborers  themselves,  who  perform  the 
w^ork,  instead  of  indirectlij,  and  in  a  round  about  way  through 
the  medium  of  middle  men,  called  contractors,  who  stand  he- 
tiueen  the  employer  and  the  employed — between  the  authorities 
who  have  to  have  the  work  done  and  those  who  have  to  do 
it — midway  of  those  who  are  under  the  necessity  of  hiiying, 
and  those  who  are  under  the  necessity  of  selling — a  class  of 
men  who  make  it  a  business  of  taking  advantage  of  the 
necessities  of  both  buyer  and  seller. 

The  proposition  only  goes  to  the  extent  of  purchasing  such 
mechanical  and  other  labor  as  can  be  done  by  hand,  straight 
from  the  producers  of  that  labor  themselves,  and  not  from 
those  who  are  not  only  non-producers  of  labor  themselves, 
but  simply  specidate  and  trade  upon  the  labor  produced  by 
others. 

The  proposition  means  to  divide  and  distribute  i\\e  profits 
of  labor  equitably  among  those  who  actually  earn  those 
profits  by  that  labor,  and  not  merely  between  those  who 
make  a  business  in  the  first  place  of  selling  labor  short  to  those 
who  are  forced  to  buy,  and  then  turning  around  and  buying 
in  the  profits  of  that  labor  long  from  those  who  are  compelled 
to  sell. 

The  proposition  is,  as  far  as  practicable,  to  save  labor  from 
the  dangers  and  conseqences  of  jobbery  and  gambling,  and  to 
lift  it  above  the  petty  schemes  and  wily  machinations  of 
those  whose  only  interest  in  the  labor  of  the  country  is  hoio 
to  subjugate  it  and  turn  it  to  their  own  selfish  ends,  and  who 
make  a  pastime  of  weaving  nets  and  setting  traps  for  the  pur- 
pose of  ensnaring  it  and  enslaving  it. 

The  proposition  is,  as  far  as  possible,  to  emancipcde  labor 
from  the  slavery  of  monopoly,  and  lift  it  out  of  a  state  of  sub- 
jection and  dependence  to  which  it  has  been  reduced  by  cor- 
porate greed  and  selfish  ambition,  and  restore  it  to  a  position 
of  freedom,  and  breathe  into  it  a  neiv  life  of  self-reliance  and 
independence. 

The  proposition  goes  to  giving  to  labor  its  oivn  reward; 
to  letting  it  share  in  its  own  profits;  to  guarantee  it  living  re- 
turns;  to  make  it  self-sustaining;  and  above  all  to  secure  to  it 
the  elements  of  prosperity  and  contentment. 

And  the  real  question  under  the  old  system — which  has  so 
long  obtained  in  public  as  well  as  private  enterj)rises,  be- 
cause it  has  been  studiously  and  ingeniously  forced  upon  the 


people,  and  unthinkingly  and  unwittingly  acquiesced  in  by 
them — has,  in  my  opinion,  not  been  so  much  a  question  of 
''How  to  do  it,''  as  of  ''Hoiu  not  to  do  it." 

It  is  often  and  truly  said,  "where  there  is  a  will  there  is  a 
way,"  and  I  believe,  without  intention  to  reflect  upon  any 
one,  if  there  had  been  more  of  a  disposition  on  the  part  of 
^those  heretofore  in  authority  to  find  out  "Hoiv  to  do  it," 
'rather  than  "Hotv  not  to  do  it,"  the  wmj  would  have  been 
made  reasonably  plain  and  open  to  them,  and  their  course 
would  without  doubt  have  been  fully  appreciated  by  the  pub- 
lic and  sustained  by  those  in  power. 

Now  let  us  not  beg  the  question  at  the  very  start,  and  be- 
fore we  have  heard  the  other  side.  Let  us  not  give  it  up,  be- 
fore we  have  at  least  investigated  both  sides.  Let  us'  not 
turn  a  deaf  ear  to  it,  before  we  have  earnestly  and  impar- 
tially endeavored  to  ascertain  whether  it  is  correct  or  not. 
Let  us  rather  meet  it  like  men,  seeking  to  do  right.  Let  us 
look  into  it  for  ourselves,  and  not  trust  entirely  to  others, 
whose  selfish  motives  may  lead  them  to  conclusions  against 
honest  conviction. 

We  are  to  interpret  the  law  as  ive  find  it  for  ourselves,  and 
to  be  governed  by  that  interpretation,  until  a  higher  power 
is  constitutionally  called  upon  to  enterpret  it  for  ns.  We  can- 
not show  that  responsibility,  for  we  are  neither  bound  nor 
shielded  by  the  interpretation  of  our  predecessors  even,  nor  by 
their  practice  thereunder. 

_  In  pursuing  this  investigation,  the  first  obstacle  we  run  across 
IS  that  put  forth  by  those  whose  purposes  are  best  subserved 
by  holding  a  contrary  view  in  favor  of  the  old  system  under 
^ection  14,  of  the  "  New  City  Hall "  Act,  so  called,  approved 
March  20,  1876,  which  provides,  that  "  ivhere  ivork  is  to  be 
done  upon  said  building,  or  materials  to  be  f'9trnished,  it  shall 
be  the  duty  of  the  Board  of  Commissioners  to  advertise 
■f  ^_  *  *  for  sealed  proposals  for  doing  said  work  or  fur- 
nishing said  material,"  etc. 

Now,  this  language,  in  my  opinion,  is  directory  to,  and  not 
mandatory  upon  this  Commission;  and  I  am  satisfied  that  a 
careful  examination  into  the  whole  scop)e  and  tenov  of  the 
Act,  with  a  due  respect  for  and  consideration  of  cdl  its  sep- 
arate jMvts,  and  an  intention  to  construe  all  of  its  distinct 
portions  with  reference  to  each  other,  so  as  to  give,  as  far  as 
possible,  inU  force  and  effect  to  the  whole,  will  lead  to  and 
warrant  this  construction. 

In  fact,  I  believe  it  will  be  found  that  no  other  construc- 
tion IS  consistent,  or  Mall  stand  the  test. 

Then  if  directory  merely,  it  may  be  followed  strictly  or 


6 


not,  as  the  Commissioners  may,  in  tlie  exercise  of  their  dis- 
cretion, determine  is  wisest  and  best  for  the  interests  of  the 
city  and  people.  If  it  may  be  deviated  from,  and  not  fol- 
lowed sirkiJij  in  any  one  particular,  it  may  in  more. 

If  cuuj  work  whatever  can  be  done  upon  the  New  City 
Hall  outside  of  the  old  system,  more  can  be  done  in  like 
manner.  If  one  man  can  be  employed  by  the  day,  more  can 
be  likewise  employed.  • 

But,  as  I  have  said  before,  it  is  not  the  intendment  of  the 
resolution  to  take  the  ivhole  matter  of  work  and  supplies  out 
of  the  old  system.  It  is  only  intended  to  change  the  mode  of 
doing  a  certain  portion  of  the  ivork  ;  and  as  there  are  no  re- 
strictions upon  or  discrimination  in  the  "  tvork  to  be  done,"  if 
one  kind  of  work  can  be  let  out  by  the  day,  more  kinds  can 
be  also. 

If  one  man  so  employed  can  be  paid  for  his  oivn  labor,  more 
can  be  paid  in  the  same  way;  and  who  will  pretend  that  it 
was  ever  intended,  or  that  it  is  practicable  if  it  was,  that  the 
entire  ivorh  of  building  and  completing  the  New  City  Hall 
could  be  conveniently  or  successfully  carried  on  without  em- 
ploying some  extra  men  from  time  to  time,  as  necessity  re- 
quires, by  the  month,  week,  or  day  ? 

How  absurd  and  unjustifiable  it  would  be  on  the  part  of 
this  Commission  to  attempt  to  go  through  the  tedious  and 
expensive  formality  and  method  of  procuring  plans  and  speci- 
Jications,  of  advertising  for  sealed  bids,  and  of  entering  into 
a  long  ivritten  contract  every  time  a  mechanic  or  laborer  is 
needed  to  guard,  or  to  care  for,  or  to  make  some  alteration, 
or  start  some  new  improvement,  or  do  some  little  repairing 
on  the  premises,  building,  or  loose  property  thereabout.  And 
yet  if  such  a  rigid,  impolitic,  and  impracticable — if  not  im- 
possible— construction  is  to  obtain,  this  is  just  lohat  mnst  be 
gone  through  with  in  every  instance  where  labor,  mechanical 
or  otherwise,  has  to  be  performed  upon  the  New  City  Hall. 

Not  a  man  can  be  employed  nor  a  dollar  expended  without 
strictl}^  pursuing  this  unreasonable  and  unwise  course  in  every 
case.  If  legislation  is  found  to  be  imijossible,  it  may  be  entirely 
disregarded.  If  it  is  found  to  be  impracticable,  then  it  may  be 
read  and  construed  so  as  to  make  the  impracticable  feature 
or  features  appear,  in  the  light  of  the  whole,  practicable  ;  and 
thus  it  may  be  carried  oid,  as  in  this  instance. 

But  in  my  opinion  in  the  case  before  us  we  are  not  driven 
to  any  such  straits  in  either  construction  or  practice;  and 
I  think  if  you  are  not  already  convinced,  a  review  and  com- 
parison of  other  provisions  of  the  Act  pertinent  to  this  sub- 
ject-matter will  serve  to  convince  you  of  the  justness,  cor- 


rectness,  and  practicability  of  the  principles  laid  clmvn  in 
said  resolution,  and  herein  contended  for. 
^  The  title  of  the  Act  itself  only  provides  for  the  ''comple- 
tion ''  of  the  New  City  Hall  generally,  and  gives  neither  in- 
dication nor  hint  of  any  specific  method  or  particular  man- 
ner in  which  it  is  to  be  done. 

Section  5  provides,  among  other  things,  in  prescribing  the 
duties  of  the  secretary  of  this  Commission,  that  he  shall 
"keep  an  accurate  account  with  each  officer,  clerk,  con- 
tractor, and  employee  "  under  the  Commission.  Now,  outside 
of  the  Commissioners  themselves  and  contractors,  the  only 
persons  intended  or  provided  for  in  terms  by  the  Act  are 
officers,  whoare  but  three  in  number,  and  limited  to  the  sec- 
retary, architect,  and  superintendent  of  ivorhs.  And  no  direct 
or  special  provision  is  made  for  the  appointment  or  employ- 
ment of  eiihev  clerks  or  other  employees;  yet  a  positive  dwtj 
is  strictly  imposed  upon  the  secretary  to  keep  accurate  ac- 
counts with  just  such  j^ersonages,  in  addition  to  those  with 
the  officers  and  contractors. 

It  will  not  be  contended  that  the  secretary  is  charged  with 
any  such  duty  as  keeping  an  accurate  account  with  each  clerk 
or  other  employee  of  the  various  contractors  performing  work 
or  furnishing  materials  upon  the  New  City  Hall,  over  whom 
he  has  no  control,  and  with  whose  affairs  he  has  no  business, 
and  therefore  no  means  of  knoivledge  whatever.  And  as  there 
are,  outside  of  the  Commissioners  themselves,  no  other  per- 
sons whom  he  is  required  to  enter  upon  the  books  of  this 
Commission,  and  with  whom  he  is  required  to  keep  accounts, 
except  those  four~to-wit,  officers,  contractors,  clerks,  and  em- 
ployees—it is  clear  from  the  scope  and  tenor  of  this  section 
alone  that  the  Act  contemplates  the  appointment  or  employ- 
ment and  payment  of  the  latter  tivo  classes  by  this  Commis- 
sion. 

But  we  will  look  in  vain  through  the  entire  act  for  any 
special  grant  or  ivarranty  of  any  such  authority. 

Yet  it  will  be  readily 'admitted  that  both  clerks  and  other 
emjyloyees  are  essentially  and  absolutely  necessary  to  carry  on 
the  business  and  M^ork  of  the  Commission;  and  it  would  be 
absurd  to  hold  that  the  law  meant  that  accounts  should  be 
opened  with  them,  and  that  they  should  be  carried  on  the 
official  books  of  this  Commission,  and  at  the  same  time  deny 
that  it  was  not  intended  that  they  could  he  employed  andpaid 
thereon. 

We  Avill  also  look  in  vain  through  the  whole  Act  to  find  any 
restriction  or  limitation  upon  either  the  number  of  such  per- 
sons which  may  be  so  employed,  or  amount  of  salaries  or 


8 


wages  Avliicli  may  be  paid  such  employees,  or  the  nature  of 
their  employment. 

The  number,  wages,  and  hind  of  employment  are  all  left 
entirely  to  the  discretion  and  at  the  option  and  disposition  of 
the  Commissioners  themselves. 

They  are  charged  with  the  general  business  of  building  and 
completing  the  New  City  Hall,  under  proper  restrictions  and 
suitable  limitations,  wdth  the  vast  minutia  and  complicated 
details  left  unavoidably  and  necessarily  to  their  judgment 
and  discretion. 

Section  ID,  in  prescribing  that  particular  class  of  powers 
and  duties  required  to  be  performed  by  said  Commission,  by 
means  of  resolution,  provides,  among  other  things,  that  the 
"  Board  shall  appoint  oificers,  award  contracts,  allow  claims, 
and  authorize  the  expenditure  of  money,  by  resolution  entered 
in  the  minutes,"  etc.;  and  further  on  provides  for  the  pub- 
lishing of  "all  resolutions  appointing  an  officer,  awarding  a 
contract,  allowing  a  claim,  or  authorizing  the  expenditure  of 
money,"  etc. 

The  "  expenditure  of  money  "  is  a  broad,  expressive,  and 
comprehensive  term,  without  any  restriction  or  limitation 
throw^n  around  it  whatever,  except  that  implied  from  the  lan- 
guage of  the  title  and  general  features  of  the  Act,  and  that 
expressed  in  a  certain  clause  of  Section  12,  providing  that 
"  in  no  case  shall  any  portion  of  said  fund  (meaning  the  New 
City  Hall  Fund)  be  used  or  expended  for  any  other  purpose 
than  that  herein  indicated  (meaning  for  the  purpose  of  con- 
structing and  completing  the  New  City  Hall);  nor  shall  any 
port  of  the  cost  of  the  construction  of  said  building  be  paid 
out  of  any  other  or  different  fund,"  etc. 

Hence,  by  these  jDrovisions  it  is  evident  that  the  "expen- 
diture of  money  "  by  the  Commission  is  circumscribed  only 
by  the  purpose  and  by  the  fund. 

For  these  objects,  and  out  of  this  fund,  they  may  disburse 
at  their  pleasure. 

They  are  confined  to  no  other  limits  ;  and  so  far  as  the  ex- 
penditure of  such  fund  for  such  purpose  is  concerned,  they 
may  purchase  materials  or  labor  in  their  discretion,  when, 
where,  and  of  whom  they  please. 

Within  these  metes  and  bounds  the  Commissioners  may 
travel  at  wall. 

Section  12  also  provides,  among  other  things,  in  further 
defining  the  powers  and  duties  of  the  Commission,  that  "The 
Board  of  Commissioners,  in  each  fiscal  year,  may  make  con- 
tracts and  expend  in  the  construction  of  said  building  (mean- 
ing the  New  City  Hall)  a  sum  equal  to  the  estimated  receipts 


9 

(meaning  the  estimate  fixed  by  the  Act  at  15  cents  on  the 
$100)  of  the  fund  during  the  current  fiscal  year,  but  no  larger 
or  greater  sum."  Thus  using  the  general  term  expend  in  the 
broadest  and  fullest  sense,  without  qualification  or  restriction 
whatever,  except  to  limit  it  to  the  "estimated  receii3ts  of  the 
fund  during  the  current  fiscal  year"  (meaning  the  New  City 
Hall  fund). 

Section  13,  after  prescribing  the  powers  and  duties  of  the 
Commission  as  to  the  first  moneys  coming  into  the  said  fund, 
goes  on  to  provide  that  other  moneys  coming  into  the  said 
fund,  shall  be  expended,  as  far  as  practicable,  without  increas- 
ing the  cost  of  the  work,  in  completing,  from  time  to  time, 
other  parts  of  said  building,"  etc.  Again  employing  the  same 
broad  and  significant  form,  of  expression,  by  the  use  of  the 
the  word  ''expended''  in  its  widest  meaning  in  reference  to 
the  finishing  up  of  certain  portions  of  the  building,  qualified 
only  hj  practicahility  and  cos/J,  in  this  instance. 

Section  14,  after  first  prescribing  how  bids  for  material  or 
work  may  be  sought  and  obtained  by  the  Commission,  is 
careful  to  provide  that  the  "Board  of  Commissioners  shall 
have  the  right  to  reject  any  or  all  bids  when,  in  their  judgment, 
the 2mhlic  uderesfs  are  therehi/  promoted.''  Thus  showing  im- 
mistakably  that  they  are  complete  masters  of  the  situation,  and 
iave  absolute  control  over  the  entire  matter,  subject  only  to 
the  proviso  as  to  the  rejection  of  bids  promotinq  the  public  in- 
terests, of  which  they  are  by  terms  made  the  sole  and  exclusive 
judges. 

Then,  if  they  can  reject  any  bid  at  all,  they  can  for  the 
same. reason  likewise  reject  more  and  cdl  of  the  same  kind  of 
bids.  And  if  they  can  reject  any  one  kind  of  bids,  they  can 
for  the  same  reason  reject  more  kinds,  and  in  like  manner  cdl 
hinds  of  bids. 

As  will  readily  appear,  therefore,  they  can,  if  in  their  Judg- 
ment the  public  interests  tvill  thereby  be  promoted,  reject  any  bid 
oi  any  class,  or  all  bids  of  any  class.  For  instance,  they  can 
reject  any  bid  for  a  certain  class  of  material,  and  for  the  same 
reason  may  likewise  reject  all  bids  for  that  class  of  material, 
and  by  the  same  process  can  reject  any  bid  for  a  ceriain  kind  of 
ivork,  and  for  the  same  reson  may  reject  all  bids  for  that  kind 
of  work.  And  for  that  matter,  as  we  have  already  seen,  they 
nave  the  power  to  extend  the  operation  of  rejection  to  cdl 
classes  of  material  and  to  cdl  kinds  of  work.  Now,  admitting 
for  the  sake  of  argument  that  Section  14  is  positively  man° 
datory,  and  not  merely  directory,  as  we  have  already  shown, 
to  the  extent  of  requiring  the  Commission  i)i  the  first  instance 
to  proceed  under  the  method  of  sealed  proposals,'  then  all  the 


10 


Commissioners  would  have  to  do  to  tlefecd  i\ie  plan,  in  whole 
or  in  part,  would  be  to  advertise  for  and  obtain  bids  and  then 
reject  them  in  whole  or  in  part,  on  the  ground  of  promoting 
the  public  interests,  claimiiuj  that  they  were  carrying  out  the 
spirit  of  the  law,  while  no  one  could  deny  that  they  were 
complying  with  the  letter  of  the  law,  and  then  turn  around 
and  buy  material  or  labor  from  whom  and  in  whatever  man- 
ner in  their  judgment  ivould  promote  the  p)uhlic  interest.  And 
who  could  gainsay  it?  No  one!  Or,  go  a  step  farther,  and 
grant  all  that  can  possibly  be  claimed  for  the  section,  that  the 
mandate  reaches  and  covers  the  ivhole  subject-matter  of  the 
supply  of  material  and  labor,  and  that  when  bids  are  once 
rejected  for  any  cause,  the  Commissioners  must  advertise  for 
more,  and  as  often  as  bids  are  rejected  must  continue  to  ad- 
vertise for  more  bids  that  will  be  acceptable  to  them.  Even 
then  they  have  it  in  their  power,  if  so  disposed  for  any  reason, 
under  the  pretense  of  carrying  out  the  spirit,  while  it  cannot 
be  doubted  that  they  are  complying  with  the  letter  of  the  law, 
by  continuing  the  process  of  rejection,  perpjetually  defeat  the 
whole  system,  and  thus  entirely  suspjend  the  work  of  construc- 
tion and  indeji.nitely  postpone  the  completion  of  the  "New  City 
Hall." 

Or  take  another  view  of  the  matter  from  a  different  stand- 
point— this  time  from  that  of  the  contractors,  instead  of  the 
Commissioners,  and  it  will  be  readily  perceived  how  completely 
the  Commission  and  the  city  would  be  at  their  mercy  in  the 
business  of  building  and  completiinj  the  "New  City  Hall,"  if 
we  were  forced  absolutely  to  depend  upon  the  old  contract 
system  for  the  supply  of  all  our  material  and  labor.  At  once 
it  will  be  recognized  how  easily  a  combination  of  contractors 
for  cdl  classes  or  any  class  of  material,  or  all  kinds,  or  any  kind 
of  ivork,  could  block  the  entire  game,  force  us  to  its  oiun  terTYis, 
or  leave  us  to  whistle,  as  it  were,  and  the  city  to  suffer.  Sup- 
pose the  contractors  for  materials  of  cdl  kinds  pool  their  issues, 
which  is  not  an  uncommon  occurrence  as  all  know,  and  pre- 
sent only  one  bid,  or  uniform  bids,  for  each  class  of  material, 
and  reaching  the  whole  supply  of  material,  at  such  exorbitant 
ficjure  or  figures,  that  it  would  he  suicidal  to  accept;  and  that 
as  often  as  such  are  rejected,  only  the  same  or  similar  bids 
are  offered  on  re-advertisement,  what  could  you  do?  Nothing, 
but  continue  repeating  the  expensive  and  fridtless  experiment. 
Or,  suppose  we  reduce  it  from  the  ivhole  down  to  one  or  more 
classes  or  items  of  material,  and  we  shall  find  that  the  result 
will  prove  to  be  the  same. 

Take  cement  or  brijck  for  an  example,  and  such  a  corner 
made  on  either  as  has  just  been  instanced,  and  the  entire 


11 


masonry  work  on  the  structure  immediately  stops,  and  cannot 
possibly  proceed  until  the  combination  is  either  heaten  or  its 
terms  conceded.  And  in  like  manner  the  work  of  masonry 
affects  all  luork  that  has  to  come  after  it;  and  neither  carpen- 
tering, nor  plastering  Avork,  nor  any  other  work  can  go  for- 
ward until  the  siege  is  raised  and  the  dead-lock  is  broken,  thus 
leaving  the  whole  to  stand  idle,  and  what  has  already  been 
done  to  fcdl  into  decay. 

And,  without  attempting  to  carry  it  out  in  detail  by  the 
same  mode  of  reasoning  and  method  of  deduction,  it  will  be 
found  that  the  same  identical  result  follows  a  \\k.e  cornhiiiation 
on  labor  as  on  material;  and  thus  the  whole  matter  of  labor 
is  likewise  at  the  disposition  and  dictation  of  any  like  cor- 
rupt or  merciless  ring  or  combincdion  which  is  governed  by 
moneyed  influence  or  political  power,  and  formed  and  main- 
tained to  monopolize  and  control  it. 

If  we  could  be  held  to  deal  only  with  contractors  or  middle- 
men, who  speculate  and  trade  on  the  labor  of  others,  and  not 
ivith  the  prodacers  of  labor  themselves,  j^ou  Avill  readil}^  per- 
ceive how  easily  they  could  form  themselves  into  a  ring,  run 
up  the  amounts  of  their  bids  to  fabulous  prices,  or  reduce  the 
wages  of  labor  to  such  low  figures  that  no  wliite  man  could 
afford  to  work,  and  thereby  force  the  Commission  to  accept 
their  terms,  or  permit  them  to  employ  Chinamen  in  violation 
of  law,  or  suffer  the  building  to  rot  down  for  want  of  con- 
tinuation and  completion. 

Take  the  case  of  those  who  contract  for  doing  brick-ivork, 
for  instance,  and  you  will  see  that,  by  making  it  impracticable 
or  impossible  to  get  the  Avork  done  except  through  them,  they 
can  clog  the  ivheels  of  the  Avhole  machine,  and  render  the 
Commission  utterly  powerless.  And  it  is  not  enough  to  say 
— it  is  no  answer  to  say — that  those  contingencies  are  not 
likely  to  arise.  As  long  as  they  exist  they  are  liahle  to  occur, 
and  we  are  bound  to  construe  the  law  so  as  to  cover  every 
contingency.  It  must  be  interpreted  in  the  light  of  every 
emergency.  If  such  things  may  take  p)lace,  it  is  our  duty  to 
provide  against  them  the  same  as  if  they  were  actually 
taking  place.  If  such  things  are  jjossible,  then  it  must  be 
conceded  that  the  Legislature  coiitemplcded  just  such  a  state  of 
thhigs ;  and  if  so,  we  must  give  a  reasonable  intendment  to 
them  in  our  construction.  Whether  they  ever  come  to  pass 
or  not,  we  are  to  act  on  principle  just  as  though  the}'  would 
come,  or  actually  were  coming,  to  pass.  And  how  are  we  to 
know  they  will  not  take  place  ?  It  must  be  remembered 
that  we,  as  a  community,  are  still  very  much  limited  in  some 
of  these  verv  commodities,  and  are  some  considerable  dis- 


12 


tance  from  the  great  centres  and  sources  of  supplies,  and  that 
we  are  by  law,  and  rightfully  so,  too,  restricted  both  directly 
and  indirectly  as  to  the  commodity  of  labor.  Besides,  it  is 
a  cardinal  principle  with  us,  and  ought  to  be  with  all,  to 
employ  only  home  jnvdiictions  of  both  material  and  labor. 

By  Section  12,  as  will  be  seen,  the  Commission  is  only  fur- 
ther limited,  so  far  as  labor  is  concerned,  to  that  exclusive 
of  Chinese  or  Mongolian,  and  so  far  as  material  is  concerned 
to  that  exclusive  of  that  which  is  produced  by  Chinamen,  or 
3Iongolians. 

And  this  special  restriction  as  to  the  character  of  labor  to 
be  employed,  is  the  only  positive  limitation  there  is  placed 
u^on  ihe  employment  of  labor  \\])0\\  the  New  City  Hall;  and 
by  virtue  of  the  negative  words  used  to  express  that  prohibi- 
tion, is  the  only  provision  in  the  entii*e  statute,  relating  to 
the  employment  of  labor,  that  is  mandcdory,  and  must  be 
strictly  followed. 

Section  18,  after  providing  that  neither  the  Commissioners 
nor  officers  shall  be  interested  in  any  contracts  upon  the  New 
City  Hall,  goes  on  to  further  provide  in  these  significant 
words:  "Nor  shall  either  of  them  be  allowed  to  receive  any 
gratuity  or  advantage  from  any  contractor,  lahcnxr,  or  person 
furnishing  labor,  or  materials,"  etc. 

And  here  again,  and  as  unmistakably  as  before,  the  Legis- 
lature have  taken  pains  to  draw  the  distinction  between  the 
two  classes;  the  contractors  on  the  one  hand,  and  that  of 
laborers,  or  persons  furnishing  labor,  on  the  other. 

For  it  would  be  inconsistent  and  absurd  to  say  that  the 
language  employed  was  intended  to  reach  and  embrace  only 
those  laborers,  or  persons  furnishing  labor,  under  the  direct 
and  exclusive  employment  and  management  of  the  contractors, 
as  they  could  in  no  way  become  connected  with,  be  held  re- 
sponsible to,  nor  be  made  dependent  upon  either  the  Com- 
missioners or  their  officers,  and  therefore  would  have  no 
motive  nor  incentive  to  contribution  to,  or  bribery  of,  either 
the  one  or  the  other. 

If  such  a  foolish  and  untenable  construction  were  at- 
tempted, it  would  be  found  that  the  law  would  be  left  ivithout  a 
reason  upon  which  to  base  it,  and  thus,  swept  of  all  foundation 
whatever,  would  fall  to  the  ground  of  itself. 

If  there  were  no  other  provision  relating  to  -this  particular 
matter  in  the  whole  Act,  I  am  satisfied  that  this  section  alone 
ought  sufficiently  to  prove  to  intelligent  and  inibiased  minds 
that  it  was  both  conceived  and  intended  by  the  framers  and 
passers  of  the  Act,  that  work  upon  the  New  City  Hall  should 
and  would  have  to  be  done  by  other's  than  contractors. 


13 


But  the  section  goes  further,  and  characterizes  the  Act  of 
receiving  such  a  gratuity  or  advantage  ix,  felony,  and  prescribes 
severe  penalties  for.  it  by  the  payment  of  heavy  fines  and  the 
serving  of  long  terms  in  the  penitentiary,  which  could  neither 
be  incurred  by  the  o(ficiaIs  nor  inflicted  by  the  authorities,, 
with  both  the  immoral  motive  and  the  criminal  intent  re- 
moved from  the  actions  of  the  parties  concerned. 

It  is  neither  immoral  nor  criminal,  within  itself,  for  any 
one  to  grant,  and  any  other  to  receive,  a  gratuity  or  advan- 
tage of  any  kind. 

In  such  a  connection  as  this,  it  is  only  where  the  giver  is 
dependent  upon  the  receiver,  and  the  receiver  has  official 
power  over  the  giver,  and  the  one  exacts  and  the  other  con- 
cedes a  consideration  for  official  favors  bestowed. 

But  in  law,  there  is  no  more  reason  why  an  employee  of 
one  who  happened  to  be  a  contractor  upon  the  New 
City  Hall,  might  not,  on  his  own  account  and  individu- 
ality, make  a  present  to  any  friend,  who  happened  to  be  an 
official,  with  whom  he  had  no  connection  whatever,  and  to 
whom  he  was  in  no  way  responsible,  and  upon  whom  he  was 
in  no  manner  dependent  for  his  employment,  than  by  any 
other  person  whomsoever. 

Then  if  such  could  be  done,  under  such  a  construction,  the 
Legislature  would  be  guilty  of,  and  chargeable  wdth,  the  folly 
and  absurdity  of  creating  a  high  offense  and  affixing  a  severe 
penalty  for  a  class  of  persons  that  could  never  be  reached, 
and  to  cover  a  class  of  criminal  cases  that  coiild  never  arise. 

I  have  thus  followed  this  provision  in  its  different  phases, 
and  through  its  different  bearings,  to  demonstrate  to  you 
that  the  section  has  reference  to  something,  and  means  something 
— and  that  something  is,  that  other  labor  than  contract  labor 
upon  the  New  City  Hall  is  clearly  contemplated  and  plainly 
meant. 

Section  19  provides,  that  ' '  any  public  officer  or  employee 
of  the  City  and  County  of  San  Francisco,  in  any  way  con- 
nected with  the  construction  of  the  City  Hall,  who  shall  will- 
fully aid  or  assist  a  bidder  for  a  contract,"  etc.,  shall  be 
guilty  of  a  misdemeanor  and  punished  as  therein  prescribed; 
which  only  goes  to  constitute  additional  evidence,  and  to 
further  prove  the  correctness  of  the  reasoning  and  conclu- 
sion arrived  at  under  Section  18. 

Section  20  also  provides,  that  "any  officer  or  employee 
who,"  amongst  other  things  prohibited,  "shall  knowingly  or 
carelessly  certify  to  the  correctness  of  a  claim  of  a  con- 
tractor, or  other,  for  work  or  labor,  or  material,  for  more 
than  such  contractor  is  lawfully  entitled,  or  who  shall  will- 


14 

fully  or  carelessly  certify  that  a  greater  amount  of  work  or 
labor  has  been  performed  than  has  been  actually  done,"  etc., 
"with  the  intention  of  defrauding,"  etc.,  shall  be  guilty  of  a 
misdemeanor  and  punished  as  therein  prescribed. 

Thereby  furnishing  still  more,  and  if  possible  greater 
proof,  that  the  Act  throughout  presupposes  the  employment 
of  persons  outside  oi  the  contract  system,  as  commonly  under- 
stood and  practiced. 

And  thus,  having  wended  our  way  cautiously  and  critically 
through  the  entire  frame,  lueh,  and  ivoof  of  the  Act,  penetrat- 
ing the  himost  recesses  and  laying  hare  the  most  secluded  por- 
tions as  we  have  gone,  we  find  ourselves  at  last  at  the  outcome, 
with  the  satisfaction  of  believing  and  feeling,  all,  as  I  trust, 
that  the  Legislature  has  wisely  and  justly  made  ample  pro- 
vision for,  and  clothed  the  Commissioners  with,  sufficient 
power  over  the  employment  of  labor  in,  upon,  and  about  the 
New  City  Hall,  as  they  may,  in  the  exercise  of  a  prudent  dis- 
cretion, deem  best  for  the  interests  of  the  public  at  large,  to 
whose  interests  as  a  ivhole  they  are  bound  to  look,  in  the  ag- 
gregate, and  not  as  to  those  of  a  small  portion  only,  in  the 
segregate. 

But  let  us  turn  and  see  how  others,  whose  duty  it  has  been 
to  construe  and  administer  these  same  provisions,  looked  at 
this  proposition,  and  what  practice  they  followed  under  like 
circumstances.  Let  us  go  back  to  the  operations  of  those 
who  have  been  required  to  travel  over  this  same  road  and 
traverse  this  same  ground  before  us,  and  examine  their 
record,  and  see  what  precedents  they  have  left  behind  them 
to  guide  those  who  must  come  after  them. 

Work  upon  the  New  City  Hall  was  commenced  under  the 
present  law,  about  the  beginning  of  the  fiscal  year  1876-77, 
by  our  predecessors,  and  the  record  shows  the  employment 
by  them  of  the  following  employees,  by  the  day,  week,  or 
month,  as  the  case  may  be,  and  otherwise  than  under  contract, 
as  follows : 


15 


Old  Commission. 


it 
05 

to 

o 

"o 

6 

Foremen, 

Mechanics, 
&c. 

Laborers, 
&c. 

CO 

® 

O 
% 

3 

00 

Amount 
of 

o 

00 

No. 

Days. 

No. 

Days. 

1 
No.    Days. 

Fund. 

1876-7 

12 

55 

1543 

22 

660 

90 

1284 

167 

3487 

$  333,331  72 

1877-8 

12 

58 

1740 

47 

1380 

78 

1218 

183 

4338 

347,633  67 

1878-9 

12 

56 

1680 

29 

1564 

78 

1108 

163 

4352 

340,712  92 

1879-80 

5 

3 

90 

26 

600 

12        202 

1 

35 

892 

47,530  07 

41 

1 

548 

13069 

$1,069,208  38 

New  Commission. 


1879-80 

7 

26 

780 

28 

840 

244 

3256 

298 

4876 

1880-1 

2 

2 

60 

8 

240 

97 

721 

107 

1021 

9 

405 

5897 

3,542  12 


From  this  interesting  and  instructive  table,  which  I  have 
with  much  trouble  and  care  prepared  for  your  information,  it 
will  be  seen  that  our  predecessors,  who  evidently  fully  be- 
lieved in  the  contract  system,  and  spared  no  pains  to  carry 
it  out,  either  considered  they  had  authority  for  employing 
such  men,  or  else  they  deliberateh/  violated  the  law. 

But  no  question  as  to  the  validity  of  their  acts  was  even 
thought  of,  and  no  one  ever  supposed  that  they  were  miscon- 
struing or  running  counter  to  the  law. 

But  while  it  is  obseiwed  that  they  employed  men  in  this 
way  to  a  considerable  number,  yet  they  were  not  so  liberal 
as  the  present  Commissioners. 

It  will  be  perceived,  on  comparison,  that  in  a  period  of  41 
months,  in  making  an  expenditure  of  $1,069,208,  they  em- 
ployed but  548  men  for  only  13,069  days,  while  the  present 


16 


Commissioners  liave,  in  a  period  of  nine  months  only,  in 
making  an  expenditure  of  but  $66,542,  given  employment  to 
405  men  for  5,897  days. 

What  was  done  then  can  be  done  now,  and  any  one  who 
did  not  object  then  will  have  the  same  reason  to  hold  his 
peace  now,  unless  it  be  to  serve  some  selfish  motive  or  politi- 
cal purpose. 

All  we  have  to  do  now  is  to  follow  the  same  practice  as 
then,  only  enlarging  and  improving  the  service  in  that  re- 
gard. 

And  I  believe  that  both  facts  and  figures  will  bear  me  out 
in  the  assertion,  that  the  work  on  the  New  City  Hall  can,  and 
should,  without  cutting  down  wages  below  standard  rates,  be 
done  as  cheap,  and  even  cheaper,  and  as  well  and  even  bet- 
ter, by  employing  men  by  the  day,  than  under  the  old  con- 
tract system,  as  it  has  heretofore  been  conducted  in  this  city 
and  county. 

Since  the  compilation  of  the  above  table,  the  members  of 
this  Commission  have  felt  themselves  authorized  and  justi- 
fied in  employing  by  the  day  about  one  hundred  extra  men, 
and  it  would  certainly  puzzle  a  Philadelphia  lawyer  even,  to 
satisfactorily  account  for  the  reason  why,  if  it  is  lawful  to 
employ  one  hundred  men  one  month  it  is  not  lawful  to  em- 
ploy them  the  next  month;  and  why,  if  it  is  justifiable  to 
employ  a  large  force  of  men,  or  any  men,  just  before  a  con- 
vention or  an  election,  it  is  not  justifiable  to  employ  the 
same  or  other  men  just  after  a.  convention  or  an  election, 
provided  there  is  work  to  do  and  money  to  pay  for  it. 

It  would  seem  to  be  in  order  for  those  who  are  in  doubt 
or  in  opposition,  to  explain  why  the  action  of  this  Commis- 
sion under  this  identical  law  was  valid  yesterday  and  not 
valid  to-day,  or  why  this  same  law  may  be  violated  with 
more  impunity  to-day  than  to-morrow;  or  why  it  happens  to 
be  discovered  to  be  illegal  at  this  particular  time. 

But  happily  we  are  not  confined  to  our  immediate  prede- 
cessors in  ofiice  alone,  nor  to  this  city  and  county  even,  for 
precedents  for  the  employment  of  labor  by  the  day  on  the 
public  improvements.  Take  the  case  of  the  construction  of 
the  Branch  State  Prison  near  the  town  of  Folsom,  and  what  do 
we  find  ?  Why  we  find  that  a  Commisson,  composed  entirely 
of  Democrats  (Governor  Irwin,  Lieutenat-Governor  Johnson, 
and  Secretary  Beck),  acting  under  a  stronger  and  more  strin- 
ngent  law  in  favor  of  labor  by  the  contract  system  (approved 
March  30,  1874)  than  the  one  we  are  now  laboring  under,  did 
not  hesitate  to  employ  men  by  the  day,  but  even  went  so  far  as 
to  take  work  out  of  the  hands  of  contractors  and  give  it  out  by 


17 


the  day.  There  the  Commissioners  were  not  only  enjoined 
to  advertise  for  bids  in  the  first  instance,  but  in  addition  to 
the  requirements  of  our  law  were  specifically  required  to  ad- 
vertise "anew"  as  often  as  they  were  rejected.  And  by  lay- 
ing the  two  acts  side  by  side  and  comparing  them  together 
throughout,  it  can  be  seen  at  a  glance  that  the  power  of  dis- 
cretion of  the  Commissioners  is  in  that  Act  far  more  limited 
and  restricted  than  in  this  one.  Yet  they  had  the  courage 
to  exercise  a  wise  and  humane  discretion  in  the  matter  of 
labor,  and  no  one  felt  called  upon  nor  had  the  hardihood  to 
raise  a  voice  against  it,  or  attempt  to  stop  them  by  a  resort 
to  the  Courts,  or  otherwise.  If  this  was  good  Democratic 
doctrine  then,  why  not  now  ?  If  it  was  a  safe  Democratic 
practice  then,  why  not  now?  And  if  the  doctrine  and  prac- 
tice were  good  enough  for  Democrats  then,  why  not  good 
enough  for  Workingmen  now?  If  Democratic  officials  could 
take  such  responsibilities  then,  Avhy  not  ^'orkingmen's  offi- 
cials now?  If  such  men  did  not  halt  between  two  opinions 
then,  why  need  we  now  ?  And  especially  when  it  is  remem- 
bered that  those  officials  were  never  guided  by  the  pledges 
nor  bound  by  the  ties  that  we  are.  And  if  we  will  only 
turn  to  our  own  proud  and  magnificent  State  Capitol  at  Sac- 
ramento, we  will  find  another  living  example  of,  and  powerful 
precedent  for,  the  cause  of  day's  labor  on  our  public  works. 
I  believe  there  are  workingmen  in  this  city  to-day  who 
worked  upon  it,  who  will  bear  me  out  in  the  statement  that 
it  is  one  of  the  best  and  most  cheaply  constructed  public 
buildings  in  the  Union,  and  it  was  mostly  if  not  entirely 
erected  and  completed  by  day's  works,  under  our  own  laws 
at  that. 

Still  other  examples  might  be  added  and  other  precedents 
might  be  cited,  but  what  is  the  use  of  going  further.  Unless 
the  right  disposition  is  found,  the  law  always  presents 
barriers,  and  precedents  go  for  naught.  If  the  spirit  is  want- 
ing, the  imagination  can  always  discover  a  bugbear  in  any 
statute,  When  the  heart  is  in  the  work,  a  way  is  easily 
found. 

If  such  a  course  can  be  pursued  and  sucli  things  be  done 
under  more  restrictive  laAvs,  let  me  ask  what  may  be  done 
under  more  liberal  laws  ?  If  such  is  ])ossible  and  practica- 
ble under  the  "  old  Constitution,"  which  is  entirely  silent  upon 
the  subject,  let  me  inquire  what  is  possible  and  practicable 
under  the  "new  Constitution,"  which,  in  Section  17  of  Article 
XX,  speaks  in  no  unmistakable  terms  that  "eight  hours 
shall  constitute  a  legal  day's  work  on  all  public  work,' '  and 


18 


by  which  it  is  evident  that  its  framers  clearly  contemj^lated 
that  such  work  might  and  should  be  done  by  the  day. 

But  let  us  turn  from  the  record  of  fact  and  example  in  the 
matter  of  building,  and  take  a  glance  at  the  authorities  for 
law  and  precedent  in  the  construction  of  statutes  of  this 
character,  beyond  the  reading  of  the  statute  itself, 

And  for  this  purpose  it  would  seem  unnecessary  to  go 
further  than  to  read  from  our  own  able  and  authoritative  law 
writer  on  "  Constitutional  and  Statutory  Limitations,"  from 
the  University  of  Michigan,  and  Supreme  Bench  of  Michi- 
gan, Judge  Thomas  M.  Cooley. 

In  his  great  work  on  "  Constitutional  Limitations,"  while 
treating  of  "  Directory  and  Mandatory  provisions,"  this  pro- 
found thinker  and  acknowledged  commentator  says : 

"The  important  question  sometimes  presents  itself,  whe- 
ther we  are  authorized  in  any  case,  when  the  meaning  of  a 
clause  of  the  Constitution  is  arrived  at,  to  give  it  such  prac- 
tical constrncfion  as  will  leaA^e  it  optional  with  the  depart- 
ment, or  officer  to  which  it  is  addressed,  to  obey  it  or  not 
as  he  shall  see  fit.  Li  respect  to  statutes,  it  has  long  been 
settled  that  particular  provisions  may  be  regarded  as  directory 
merely,  by  which  it  is  meant  that  they  are  to  be  considered 
as  giving  directions  which  ought  to  be  followed,  but  not  as 
so  limiting  the  power  in  respect  to  which  the  directions  are 
given  that  it  cannot  effectually  be  exercised  without  ob- 
serving them." 

This,  as  will  be  seen,  fits  the  case  before  us  exactly;  as 
the  only  question  as  to  the  statute  in  this  instance  being 
considered  mandatory  or  directory,  arises  on  that  particular 
j)ro vision  relating  to  the  mode  or  manner  of  doing  the  work 
or  furnishing  the  material,  and  not  to  the  real  object  of  the 
Act  at  all. 

Under  this  head,  and  in  support  of  this  proposition,  Judge 
Cooley  quotes  an  opinion  of  the  Supreme  Court  of  New  York, 
afterwards  approved  by  the  New  York  Court  of  Appeals,  and 
which  lays  down  the  rule  as  one  settled  by  authority,  that 
"  statutes  directing  the  mode  of  proceeding  by  public  offi- 
cers are  directory,  and  are  not  regarded  as  essential  to  the 
validity  of  the  proceedings  themselves,  unless  it  be  so  de- 
clared in  the  statute." 

And  in  a  late  case  in  Illinois,  the  Supreme  Court  of  that 
State,  in  the  matter  of  ascertaining  and  assessing  damages 
upon  real  estate  benefited  for  local  improvement,  by  Com- 
missioners, who  were  required  by  the  statute  to  sign  and 
return  their  award  within  a  specified  time,  but  who  failed  to 
comply  with  the  law  in  that  resjDect,  and  made  return  after- 


19 


wards,  after  deciding  that  the  case  would  turn  upon  the  ques- 
tion as  to  whether  any  advantage  would  be  lost,  or  right 
destroyed,  or  benefit  sacrificed,  either  to  the  public  or  parties 
affected,  goes  on  to  hold  in  these  express  words,  that  "There 
are  no  negative  words  used  declaring  that  the  functions  of 
the  Commissioners  shall  cease  after  the  expiration  of  the 
forty  days,  or  that  they  shall  not  make  their  return  after  that 
time;  nor  have  we  been  able  to  discover  the  least  right, 
benefit,  or  advantage  which  the  property  owner  could  derive 
from  having  the  return  made  within  that  time,  and  not  after, 
*  *  "^  as  the  property  owner  has  the  same  time  and  op- 
portunity to  prepare  himself  to  object  to  the  assessment  and 
have  it  corrected."  And  likewise  it  would  seem  difficult,  if 
not  impossible,  to  see  what  advantage  would  be  lost,  or  right 
destroyed,  or  benefit  sacrificed,  either  to  the  city  or  the  public 
at  large,  in  further  pursuing  the  mode  here  proposed  for  doing 
the  work  we  have  to  do,  and  which  has  been,  and  is  being, 
followed  to  a  considerable  extent. 

Chief  Justice  Shaw,  of  Massachusetts,  in  the  celebrated 
tax  case  of  Torrey  vs.  MiUbury,  says: 

"  In  considering  the  various  statutes  regulating  the  assess- 
ment of  taxes  and  the  measures  preliminary  thereto,  it  is 
not  always  easy  to  distinguish  which  are  conditions  prece- 
dent to  the  legality  and  validity  of  the  tax,  and  which  are 
directory  merely,  and  do  not  constitute  conditions.  One 
rule  is  very  plain  and  well  settled  that  all  those  measures 
that  are  intended  for  the  security  of  the  citizen,  for  insuring 
equality  of  taxation,  and  to  enable  everyone  to  know  with 
reasonable  certainty  for  what  polls  and  tor  what  real  estate 
he  is  taxed,  and  for  what  all  those  who  are  liable  with  him 
are  taxed,  are  conditions  precedent;  and  if  they  are  not  ob- 
served, he  is  not  legally  taxed,  and  he  may  resist  it  in  any 
of  the  modes  authorized  by  law  for  contesting  the  validity 
of  the  tax.  But  many  regulations  are  made  by  statutes  de- 
signed for  the  information  of  assessors  and  officers,  and  in- 
tended to  promote  method,  system,  and  uniformity  in  the 
modes  of  proceeding,  a  compliance  or  non-compliance  with 
which  does  in  no  respect  affect  the  rights  of  tax-paying 
citizens.     These  may  be  considered  directory." 

And  if  in  such  a  vital  matter  as  taxation  itself  the  mode 
of  proceeding  does  not  seriously  affect  the  rights  of  tax- 
payers, so  in  this  far  less  important  matter  will  it  be  hard  to 
find  wherein,  more  fully  following  the  mode  of  proceeding 
proposed,  which  has  been  partially  followed  from  the  start, 
will  injuriously  affect  the  rights  of  this  community. 

The  Supreme  Court  of  Wisconsin,  in  a  noted  case  involv- 


20 


ing  the  construction  of  statutes  upon  the  point  of  being 
mandatory  or  directory,  held: 

' '  We  understand  the  doctrine  concerning  directory  stat- 
utes to  be  this :  That  where  there  is  no  substantial  reason 
why  the  thing  to  be  done  might  not  as  well  be  done  after 
the  time  prescribed  as  before,  there  is  no  presumption  that 
by  allowing  it  to  be  so  done  it  may  work  an  injury  or 
wrong." 

And  as  mode  of  doing  and  time  of  doing  stand  substan- 
tially in  the  same  relation  and  on  the  same  footing  to  the 
thing  itself  to  be  done,  by  analogy  or  reasoning,  '  'there  is  no 
substantial  reason  why  the  thing  to  be  done  might  not  as  well 
be  done  "  in  a  different  manner  from  that  pointed  out  by  the 
statute. 

Judge  Cooley  further  says,  in  his  admirable  work  before 
mentioned,  that  ' '  Those  directions  which  are  not  of  the  es- 
sence of  the  thing  to  be  done,  but  which  are  given  with  a 
view  merely  to  the  proper,  orderly  and  prompt  conduct  of  the 
business,  and  by  a  failure  to  obey  which  the  rights  of  those 
interested  will  not  be  prejudiced,  are  not  commonly  to  be 
regarded  as  mandatory;  and  if  the  act  is  performed,  but  not 
in  the  time  or  in  the  precise  mode  indicated,  it  may  still 
be  sufficient,  if  that  which  is  done  accomplishes  the  sub- 
stantial purpose  of  the  statute.  But  this  rule  presupposes 
that  no  negative  words  are  employed  in  the  statute  which  ex- 
pressly or  by  necessary  implication  forbid  the  doing  of  the 
act  at  any  other  time  or  in  any  other  manner  than  as 
directed." 

And  in  support  of  this  doctrine  he  cites  a  large  number  of 
the  most  important  cases,  bearing  directly  on  this  question, 
from  the  highest  Courts  in  the  States  of  Massachusetts,  Ver- 
mont, Illinois,  Pennsylvania,  Maryland,  Connecticut,  Ohio, 
Michigan,  Nebraska,  Indiana,  Wisconsin,  Louisinna,  Mon- 
tana, Texas,  California,  Alabama,  New  York  and  other  States. 

He  also  refers  to  the  masterly  work  of  Mr.  Sedgwick  on 
"Statutory  and  Constitutional  Law,"  and  quotes  the  renowned 
Lord  Mansfield  of  England,  who  long  since  firmly  laid  down 
the  doctrine — which  has  never  since  been  departed  from,  and 
will  live  as  long  as  enlightened  law  itself — that  whether  a 
statute  is  mandatory  or  not  depends  upon  whether  that 
which  is  directed  to  be  done,  is  or  is  not  of  the  essence  of 
the  thing  required. 

Now  let  us  try  the  matter  we  have  in  hand  by  this  plain 
and  easy  rule,  and  see  how  it  works'.  Then  what  is  the  prin- 
cipal thing  to  be  done  by  us  under  the  "New  City  Hall" 
Act?    You  can  see  at  a  glance  that  it  is  not  the  letting  of 


21 


contracts,  nor  the  purchasing  of  material  or  the  hiring  of 
labor  in  any  particular  manner.  As  yOu  can  readily  perceive, 
these  are  merely  preliminary  measures  to  securing  the  main 
object  sought  by,  and  incidental  forms  and  modes  of 
proceeding  to  accomplish  the  real  purpose  of  the  statute. 
As  you  can  clearly  understand,  they  are  but  the  sJtadoiv,  and 
not  the  substance — only  the  forms,  and  not  the  essence. 

The  principal  thing  to  be  done — the  real  purpose  to  be 
accomplished — the  main  object  to  be  attained— the  actual 
duty  to  be  performed — the  great  business  to  be  consummated 
by  us — is  the  completion  of  the  New  City  Hall.  Nothing 
short  of  this,  and  nothing  beyond  this.  This  is  our  begin- 
ning and  our  ending.  All  else  is  but  incidental  and  tribu- 
tary. The  completion  of  the  building  is  the  chief  business 
to  be  carried  on  and  carried  out  by  us,  and  all  other  things 
connected  with  it  are  but  helps  to  that  purpose  and  means 
to  that  end.  And  as  Judge  Cooley  wisely  and  correctly  says, 
all  we  could  be  expected  and  would  be  compelled  to  do,  even 
under  the  directions  prescribed  by  the  Act  itself,  is  to  carry 
out  the  "the  subtantial purjDose  of  the  statute, "which  is  none 
other  than  the  completion  of  the  New  City  Hall. 

More  especially  is  this  true,  since  there  are  no  words  of  a 
negative  character  whatever,  either  in  this  particular  provis- 
ion or  anywhere  else  in  the  entire  Act,  to  take  the  proposition 
out  of  the  operation  of  this  rule,  by  either  expressl}'  or  im- 
pliedly forbidding  the  doing  of  work  in  the  manner  here 
proposed. 

Mr.  Justice  AUen  G.  Thurman,  of  Ohio,  who  is  acknowl- 
edged by  all  to  be  one  of  the  very  profoundest  jurists  in  the 
land,  in  considering  the  much  higher  and  stronger  case  of 
the  constitutionality  of  a  statute  whose  validity  was  assailed 
on  the  ground  that  it  was  not  passed  in  the  mode  prescribed 
by  the  Constitution,  treats,  the  question  at  length,  and  in  this 
able  and  conclusive  manner: 

"By  the  term  mode,  I  do  not  mean  to  include  the  authority 
in  which  the  law-making  power  resides,  or  the  number  of 
votes  a  bill  must  receive  to  become  a  law.  That  the  power 
to  make  laws  is  vested  in  the  Assembly  alone,  and  that  no 
Act  has  any  force  that  was  not  passed  b}^  the  number  of  votes 
required  by  the  Constitution,  are  nearly  or  quite  self-evident 
propositions.  These  essentials  relate  to  the  authority  by 
which,  rather  than  the  mode  in  which,  laws  are  to  be  made. 
Now,  to  seciire  the  earful  exercise  of  this  power,  and  for 
other  good  reasons,  the  Constitution  prescribes  or  recognizes 
certain  things  to  be  done  in  the  enactment  of  laws,  which 
things  form  a  course  or  mode  of  Legislative  procedure.    Thus 


22 


we  fiucl,  infer  alia,  the  provision  that  every  bill  shall  be  fully 
and  distinctly  read  on  three  different  days,  unless  in  case  of 
urgency  three-fourths  of  the  House  in  which  it  shall  be 
pending  shall  dispense  with  the  rule.  This  is  an  important 
provision,  without  doubt;  but,  nevertheless,  there  is  much 
reason  for  saying  that  it  is  merely  directory  in  its  character, 
and  that  its  observance  by  the  Assembly  is  secured  by  their 
sense  of  duty  and  official  oaths,  and  not  by  any  supervisory 
power  of  the  Courts.  Any  other  construction,  we  incline  to 
think,  would  lead  to  very  absurd  and  alarming  consequences. 
If  it  is  in  the  power  of  every  Court  (and  if  one  has  the 
power,  every  one  has  it)  to  inquire  whether  a  bill  that  passed 
the  Assembly  was  'fully  and  distinctly'  read  three  times  in  each 
House,  and  to  hold  it  invalid  if,  upon  any  reading,  a  word  was 
accidentally  omitted,  or  the  reading  was  indistinct,  it  would 
obviously  be  impossible  to  know  what  is  the  statute  law  of 
the  State. 

"Now,  the  requisition  that  bills  shall  be  fully  and  distinctly 
read,  is  just  as  imperative  as  that  requiring  them  to  be  read 
three  times;  and  as  both  relate  to  the  mode  of  procedure 
merely,  it  would  be  difficult  to  find  any  sufficient  reason  why 
a  violation  of  one  of  them  would  be  less  fatal  to  an  Act,  than 
a  violation  of  the  other." 

This  opinion  was  afterwards  affirmed  and  recognized  as 
the  law  by  the  Supreme  Court  of  Ohio,  in  which  it  is  held 
that : 

' '  The  provision  that  no  bill  shall  contain  more  than 
one  subject  which  shall  be  clearly  expressed  in  its  title,  is 
also  made  a  permanent  rule  in  the"  introduction  and  passage 
of  bills  through  the  Houses.  The  subject  of  the  bill  is  re- 
quired to  be  clearly  expressed  in  the  title  for  the  purpose  of 
advising  members  of  its  subject  when  voting  in  cases  in 
which  the  reading  has  been  dispensed  with  by  a  two-thirds 
vote.  The  provision  that  a  bill  shall  contain  but  one  subject 
w^as  to  prevent  combinations  by  which  various  and  distinct 
matters  ot  legislation  should  gain  a  support  which  they 
could  not  if  presented  separately.  As  a  rule  of  proceeding 
in  the  General  Assembly,  it  is  manifestly  an  important  one. 
But  if  it  was  intended  to  effect  any  practical  object  for  the 
benefit  of  the  people,  in  the  examination,  construction,  or 
operation  of  Acts  passed  and  published,  we  are  unable  to 
perceive  it.  The  title  of  an  Act  may  indicate  to  the  reader 
its  subject,  and  under  the  rule  each  Act  would  contain  one 
subject.  To  suppose  that  for  such  a  purpose  the  Constitu- 
tional Convention  adopted  the  rule  under  consideration 
would  impute  to  them  a  most  minute  provision  for  a  \erj 


23 

imperfect  heading  of  the  Chapters  of  Laws  and  their 
subdivision.  This  provision  being  intended  to  op- 
erate upon  bills  in  their  progress  through  the  Gen- 
eral Assembly,  it  must  be  held  to  be  directory  only. 
It  relates  to  bills,  and  not  to  Acts.  It  would  be  most  mis- 
chievous in  practice  to  make  the  validity  of  every  law  de- 
pend upon  the  judgment  of  every  judicial  tribunal  of  the 
State  as  to  whether  an  Act  or  a  bill  contained  more  than 
one  subject,  or  whether  this  one  subject  was  clearly  ex- 
pressed in  the  title  of  the  Act  or  bill.  Such  a  question 
would  be  decided  according  to  the  mental  precision  and 
mental  discipline  of  each  Justice  of  the  Peace  and  Judge. 
No  practical  benefit  could  arise  from  such  inquiries.  We  are 
therefore  of  opinion  that,  in  general,  the  only  safeguard 
against  the  violation  of  these  rules  of  the  Houses  is  their  re- 
gard for  and  their  oath  to  support  the  Constitution  of  the 
Btate." 

I  read  to  this  extent  from  the  text  of  these  exhaustive  and 
convincing  decisions,  which  constitute  the  law  as  to  consti- 
tutional as  well  as  statutory  construction  upon  this  impor- 
tant subject  in  the  great  and  advanced  State  of  Ohio  to-day, 
and,  in  fact,  throughout  the  Union,  except,  as  in  our  own 
State,  where  the  Constitution  itself,  by  express  terms,  makes 
all  its  provisions  either  mandatory  or  prohibitory,  in  order 
to  show  the  natural  inference,  and  draw  the  inevitable  con- 
clusion therefrom,  by  leading  your  minds  directly  to  the 
pertinent  inquiry  that  if  such  is  the  broad  and  liberal  rule 
of  grave  constitutional  construction  involving  the  very  pro- 
ceedings of  the  law-makers  themselves  in  making  the  law, 
what  must  be  the  breadth  and  liberality  of  the  statutory 
construction  of  the  ordinary  proceedings  of  officials  in  their 
proceedings  under  that  law  ?  And  I  feel  that,  in  order  to 
convince  you  how  much  higher  and  narrower  the  rule  of 
construction  is  when  applied  to  the  Constitution  instead  of 
a  statute,  I  need  only  quote  the  forcible  language  of  Mr. 
Cooley  himself,  wherein  he  says : 

"  The  Courts  tread  upon  very  dangerous  ground  when  they 
venture  to  apply  the  rules  which  distinguish  directory  and 
mandatory  statutes  to  the  provisions  of  a  Constitution. 
ConstitutioDS  do  not  usually  undertake  to  prescribe  mere 
rules  of  proceeding,  except  when  such  rules  are  looked 
upon  as  essential  to  the  thing  to  be  done;  and  they 
must  then  be  regarded  in  the  light  of  limitations 
upon  the  power  to  be  exercised.  It  is  the  province 
of  an  instrument  of  this  solemn  and  permanent  char- 
acter,   to    establish    those    fundamental    maxims    and    fix 


24 


those  unvarying  rules,  by  which  all  departments  of  gov- 
ernment must  at  all  times  shape  their  conduct;  and  if  it  de- 
scends to  prescribing  mere  rules  of  order  in  unessential 
matters,  it  is  lowering  the  proper  dignity  of  such  an  instru- 
ment and  usurping  the  proper  province  of  ordinary  legisla- 
tion. We  are  therefore  not  to  expect  to  find  in  a  Constitu- 
tion, provisions  which  the  people  in  adopting  it  have  not 
regarded  as  of  high  importance,  and  worthy  to  be  embraced 
in  an  instrument  which,  for  a  time  at  least,  is  to  control 
alike  the  government  and  the  governed,  and  to  form  a  stand- 
ard by  which  is  to  be  measured  the  power  which  can  be  ex- 
ercised as  well  by  the  delegate  as  by  the  sovereign  people 
themselves." 

From  all  which  the  ditierence  between  the  rule  as  applied 
to  the  Constitution  and  the  statute,  and  the  balance  in  favor 
of  the  statute,  are  too  obvious  and  striking  to  require  further 
quotation  or  discussion.  It  only  remains,  therefore,  neces- 
sary to  refer  to  Judge  Cooley  but  once  more  in  regard  to  the 
force  and  effect  of  the  actions  of  officials  exercising  discre- 
tionary power  under  the  statute,  wherein  he  asserts  that: 

"Great  deference  has  been  paid  in  all  cases  to  the  action 
of  the  executive  department,  where  its  officers  have  been 
called  upon,  under  the  responsibilities  of  their  official  oaths, 
to  inaugurate  a  new  system,  and  where  it  is  to  be  presumed 
they  have  carefully  and  conscientiously  weighed  all  consid- 
erations and  endeavored  to  keep  within  the  letter  and  spirit 
of  the  Constitution.     If  the  question  involved  is  really  one 
of  doubt,  the  force  of  their  judgment,  especially  in  view  of 
the  injurious  consequences  that  may  result  from  disregard- 
ing it,  is  fairly  entitled  to  turn  the  scale  in  the  judicial  mind." 
And  in  precisely  the  same  category,  and  in  no  less  a  light, 
would  stand  the  actions  of  this  Commission  in  the  eyes  of 
the  Judiciary,  in  the  employment  of  labor  upon  the  New 
City  Hall,  even  if  there  were  any  doubt  of  their  right  to 
exercise  a  discretion  in  the  matter,  or  if  they  were  to  inaug- 
urate and  carrj'  on   an  entirely  "new  system  "  under  a  pro- 
vision of  the  Constitution  itself,  instead  of  a  statute  merely. 
Again,  Dwarris,   a   distinguished  and  reliable  writer   on 
the  law  of  statutes,  asserts   "  That  it  may  be  stated  as  the 
general  rule  that  where  a  statute  directs  certain  proceedings  to 
be  done  in  a  certain  way  or  at  a  certain  time,   and  the  form 
or  period  does  not  appear  essential  to  the  judicial  mind,  the 
law  will  be  regarded  as  directory,  and  the  proceedings  under 
it  will  be  held  valid,  though   the  command  of  the  statute  as 
to  form  and  time  has  not  been  strictly  obeyed — the  time  and 
manner  not  being  of  the  essence  of  the  thing  required." 


25 

In  6  and  7  Hill's  N.  T.  Keports  it  is  lield  that  "The  true 
distinction  as  to  mandatory  and  directory  statutes  is  this — 
Where  the  provision  of  the  statute  is  the  essence  of  the  thing 
required  to  be  done,  and  by  which  jurisdiction  to  do  it  is 
claimed,  it  is  mandatory;  otherwise,  where  it  relates  to  form 
and  manner,  and  where  an  act  is  incident,  as  after  jurisdic- 
tion has  been  obtained,  it  is  directory." 

In  the  case  of  Pierce  vs.  Morris,  2  A.  and  E.  94,  the  Court 
says:  "I  understand  the  distinction  between  directory  and 
imperative  statutes  to  be  that  a  clause  is  directory  "when 
the  provisions  contain  mere  matters  of  direction  and  nothing 
more:  but  not  so  when  they  are  followed  by  such  words  as 
are  used  here — viz.,  that  anything  done  contrary  to  such  pro- 
visions shall  be  null  and  void  to  all  intents,"  etc. 

In  1  Baldwin's  Eeports,  it  is  held  that  "The  provisions  of 
a  law  which  is  merely  directory  are  not  to  be  construed  into 
conditions  precedent." 

And  Dwarris  on  Statutes  says,  "When  the  terms  of  a 
statute  leave  room  for  any  administrative  discretion  to  be 
exercised,  it  cannot  be  interpreted  to  be  mandatory,  or  to 
be  a  condition  precedent." 

And  thus  we  might  go  through  and  exhaust  the  entire  cat- 
alogue of  reports  of  States  and  works  of  eminent  men,  but 
leaving  that  vast  array  of  authorities  behind,  and  coming  on 
down  to  the  more  familiar  but  well-established  jurisprudence 
of  our  own  fair  State  of  California,  we  readily  find  that  we 
need  go  no  further  for  ample  legal  warrant  and  judicial  pre- 
cedent for  our  action  in  this  matter. 

In  the  4  California  Eeports,  in  the  case  of  Vermule  vs. 
Shmv,  involving  the  construction  of  Section  180  of  the  Prac- 
tice Act,  which  provides  that,  "upon  the  trial  of  an  issue  of 
fact  by  the  Court,  its  decision  shall  be  given  in  writing,  and 
filed  with  the  Clerk,  within  ten  days  after  the  trial  took 
place.  In  giving  the  decision,  the  facets  found,  and  conclu- 
sions of  law,  shall  be  separately  stated.  Judgment  upon  the 
decision  shall  be  executed  accordingly."  Our  late  Justice 
Heydenfeldt,  delivering  the  opinion  of  the  Court,  said: 

*/  We  therefore  decide  that,  as  to  the  time  required  for  the 
written  decision  to  be  filed,  or  the  relative  order  in  which  it 
should  be  done,  the  Act  is  only  directory." 

And  again,  in  the  49  California  Eeports,  in  the  late  case 
of  Lamont  vs.  Solano  Coimty,  involving  the  construction  of 
Section  G32  of  the  Code  of  Civil  Procedure,  which  provides 
that,  "upon  the  trial  of  fact  by  the  Court,  its  decision  must 
be  given  m  writing,  and  filed  with  the  Clerk  within  twenty 
days  after  the  cause  is  submitted  for  decision;  and  unless 


26 


the  decision  is  filed  within  that  time,  the  action  must  be  tried 
again."  Our  recent  and  acknowledged  Chief  Justice  Wallace 
held,  speaking  for  the  Court,  "we  are  of  opinion  that  the 
provision  in  the  statute  is  directory  merely." 

And  if  to  such  an  extent  the  directory  rule  is  carried  by,  a 
Judge,  in  the  most  important  litigation  of  the  country,  cov- 
ering the  vast  domain  of  civil  rights  and  property  interests 
of  the  people,  to  what  length  may  a  mere  ministerial  officer 
go  in  exercising  a  discretion  in  executing  the  simple  direc- 
tions of  an  ordinary  statute  ? 

The  word  "shall,"  in  the  first  case,  is  precisely  the  same 
word  used  in  Section  14th,  the  "New  City  Hall  Act,"  without 
the  qualifying  and  modifying  effect  of  the  precedent  word 
"when."  And  the  word  "must,"  in  the  last  case,  in  its 
double  use  and  surrounding  connection,  is  certainly  as  im- 
perative in  its  import  as  the  word  "shall."  And  in  a  still  later 
case  of  The  People  vs.  The  Supervisors  of  the  County  of  San 
Luis  Obispo,  our  present  very  able  and  much  esteemed  Jus- 
tice McKinstry,  in  construing  an  Act  of  the  Legislature  of 
this  State,  empowering  and  requiring  the  Board  of  Super- 
visors of  San  Luis  Obispo  County  to  issue  county  bonds  for 
improving  the  public  roads  of  the  county,  took  occasion  to 
say  that,  "The  word  '  required  '  in  the  first  section  may  be 
rejected  in  accordance  with  the  principle,  that  part  of  a 
statute  may  be  held  unconstitutional,  and  the  rest  valid,  un- 
less it  appear  that  the  Legislature  would  not  have  approved 
the  portion  which  they  have  power  to  enact,  disconnected 
from  that  which  is  void.  Indeed  it  may  be  laid  down  as  a 
rule,  in  this  class  of  statutes,  that  where  the  word  '  shall ' 
is  used,  it  should  ordinarily  be  construed  to  be  the  equivalent 
of  '  may.'  Words  imperative  should  be  interpreted  as  per- 
missive, in  order  to  give  all  possible  effect  to  the  intention  of 
the  Legislature."  < 

And  I  might,  with  equal  confidence  and  like  success,  carry 
you  with  me  into  the  42,  44,  and  49  California  Reports,  and 
in  fact  through  nearly  every  Report  in  the  State,  in  further 
support  of  the  same  rule  and  practice,  but  I  do  not  care  to 
go  any  further,  and  will  here  rest  the  law  of  the  matter,  with- 
out either  doubt  or  fear  of  the  consequences. 

It  now  remains  only  for  me  to  finally  say,  that  this  Com- 
mission must  decide  for  itself,  now  and  forever,  whether  it 
will  hire  the  labor  upon  this  Hall  directly  from  the  men  who 
perform  it,  and  pay  them  the  profits  there  is  to  be  made  on 
it,  or  whether  they  will  employ  others  who  buy  and  sell  labor 
second-hand  to  hire  it  for  them,  and  let  them  pocket  the  pro- 
ceeds to  be  derived  from  it. 


27 


There  is  left  to  this  Commission  but  one  of  the  two 
courses. 

There  is  no  half-way  ground  to  be  occupied,  and  no  middle 
direction  to  be  pursued.     It  is  simply  one  thing  or  the  other. 

The  provision  of  the  Act  under  consideration  is  either 
altogether  mandatory  or  only  directory. 

If  considered  to  be  mandatory,  this  Commission  must  ab- 
solutely obey  it.  If  held  to  be  directory  merely,  then  they 
may  exercise  a  reasonable  discretion. 

If  mandatory,  they  must  positively  hire  all  labor,  and  pur- 
chase all  material  by  contract,  awarded  upon  sealed  bids. 

If  directory,  then  they  may  employ  labor  by  tlie  day  or 
otherwise,  as  they  deem  best. 

If  mandatory,  every  man  now^  employed  by  them,  not 
under  special  contract  awarded  upon  sealed  bids,  must  be 
discharged,  and  no  more  employed.  If  directory,  then  those 
men  emjDloyed  by  the  day,  week,  or  month  may  not  only  be 
retained,  but  as  many  others  as  are  found  to  be  necessary  or 
profitable  may  be  in  like  manner  employed.  For  there  is 
no  authority  whatever  in  the  statute,  outside  of  this  con- 
struction, to  warrant  or  justify  the  employment  of  labor  of 
any  kind  otherwise  than  under  the  old  contract  system. 

The  work  of  discharge  cannot  be  stopped  half-way,  or 
anywhere  short  of  the  end.  It  must  be  as  far-reaching  and 
sweeping  as  the  mandate  is  absolute  and  imperative.  The 
whole  must  go,  or  none  need  go.  If  one  may  stay,  all  may 
stay;  and  if  any  at  all  may  stay,  more  may  come.  Are  you 
prepared — are  you  ready  to  begin  the  work  of  discharge  ? 
Then  discharge  these  employees,  and  they  will  be  turned  over 
to  the  tender  mercies  of  contractors,  or  be  compelled  to  find 
work  elsewhere,  and  where  I  fear  it  is  not  to  be  found. 

Discharge  these  men,  and  the  thousand  one  little  repairs 
about  this  extensive  building,  needing  constant  attention, 
cannot  be  made,  nor  the  unavoidable  extra  work  be  done, 
and  the  structure  must  suffer  from  the  consequences. 

Discharge  these  men,  and  its  ornamental  and  costly 
grounds,  needing  continual  care,  must  be  neglected  and  go 
to  ruin. 

Discharge  these  men,  and  all  this  vast  property  must  go 
unwatched  in  day,  and  unguarded  at  night,  and  left  exposed 
to  the  ravages  of  tlie  elements  and  the  spoliation  of  the 
vicious  and  destructive. 

Discharge  these  men,  and  the  Commissioners  will  have  to 
neglect  their  more  important  and  vital  duties  in  other  official 
fields,  and  devote  themselves  almost  exclusively  to  the  minutia 


28 


and  details  of  this  great  work.  Are  tliey  prepared  to  go  into 
such  a  complicated  and  untried  business  by  themselves  ? 

Discharge  these  men,  and  the  secretary  must  hidividucdly 
undertake  and  perform  the  entire  work  of  keeping  all  the 
difl'erent  books,  the  papers,  and  the  records  of  one  of  the 
most  iinportant  branches  or  departments  of  the  municipal 
government;  must  personally  attend  and  look  after  the 
business  of  every  meeting,  general  or  special;  must,  with 
his  OMai  hands,  write  up  the  full  and  correct  minutes  of  all 
proceedings  of  the  Board  of  Commissioners;  must  himself 
keep  accurate  and  complete  accounts  of  all  the  receipts  and 
disbursements  of  nearly  or  quite  half  a  million  of  dollars 
during  this  fiscal  year;  must  keep  full  and  correct  accounts 
with  all  the  officers,  all  the  clerks,  all  the  contractors,  and 
all  other  employees;  and  must,  by  himself  alone,  perform 
all  the  other  varied  and  laborious  services  necessarily  and 
unavoidably  required  of  him  and  his  office  in,  upon,  and 
about  the  New  City  Hall.  Do  you  think  he  could  do  all 
this  without  assistance  ? 

Discharge  these  men,  and  the  architect  must,  by  his  own 
hands,  prepare  all  the  long  and  critical  plans  and  specifica- 
tions, and  make  all  the  elaborate  and  difficult  drawings  and 
tracings  for  the  same;  must  personally  examine  and  judge 
of  the  quality  and  durability  of  all  the  countless  materials 
of  every  kind  and  nature  used  in  the  construction,  and  must 
individually  examine  all  the  work  done  of  every  kind  and 
description,  and  by  himself  positively  ascertain  that  every 
vestige  of  it  is  done  in  a  good,  in  a  substantial,  and  in  a 
worknianlike  manner,  and  in  exact  accordance  with  the 
plans,  specifications,  and  drawings  which  he  has,  unaided, 
first  prepared  for  the  whole  building,  and  such  other  im- 
portant and  multifarious  duties  as  may  be  imposed  upon  him 
and  his  office  by  this  Commission.  Does  any  one  imagine 
that  he  can  do  all  this  without  aid  before  July  1,  1881  ? 

Discharge  these  men,  and  the  superintendent  of  works 
must,  at  all  times  during  the  performance  of  any  and  all 
work,  and  the  furnishing  of  any  or  all  materials,  be  present 
in  person,  and  himself  also  see  that  every  part  of  work  is 
done  in  a  good  and  substantial  and  workmanlike  manner, 
and  that  every  portion  of  the  materials  used  comply  in  all 
respects  with  the  description  and  quality  called  for  in  the 
plans  and  specifications  for  the  work;  and  he  must  individu- 
ally perform  all  other  and  further  duties  as  must  inevitably, 
and  from  the  very  nature  of  his  position,  be  required  of  him 
and  his  office  by  this  Commission  connected  with  the  con- 


29 


struction  and  completion  of  the  New  Citv  Hall.  Does  any 
one  supposes  that  he  can  do  all  thi  without  help  ? 

Discharge  these  men,  and  the  three  members  of  this  Com- 
mission, with  the  aid  alone  of  the  three  officers  specifically 
provided  for  in  the  statute,  must  undertake  to  rightfully  and 
successfully  superintend,  direct,  manage,  supervise,  carry  on, 
and  carry  out  to  final  completion,  in  a  very  brief  time,  the 
most  important,  costly,  and  valuable  of  all  our  internal  pub- 
lic improvements,  in  either  city  or  State.  Does  any  one 
think*  that  we  could  do  either  ourselves  or  the  public  justice 
by  such  a  narrow  construction  and  absurd  proceeding  ?  This 
is  just  what  the  strict  rule  of  mandate  that  has  been  invoked 
against  us  would  lead  us  to  in  both  law  and  practice.  Let 
us  avoid  all  such  maelstroms  and  quicksands,  and  steer  clear 
for  smooth  water  and  fair  sailing.  Let  us  take  the  politic, 
wise,  and  just  course,  so  clearly  pointed  out  to  liberal  and 
fair-minded  men,  and  leave  the  rest  to  the  people  whom  it  is 
our  duty  to  serve. 

This  vast  and  costly  structure  is  not  being  built  for  to-day, 
but  for  to-morrow,  and  for  the  next  day,  and  for  the  great  here- 
after as  well.  It  is  not  erected  for  the  occupancy  of  us  only,  but 
for  our  children,  and  our  children's  children,  who  are  also  to 
come  after  us.  This  immense  and  expensive  structure  does 
not  belong  alone  to  those  who  now  pay  taxes  to  rear  it,  but 
it  is  also  the  inheritance  of  those  who  must  hereafter  pay 
taxes  to  preserve  and  maintain  it.  This  monstrous  pile  is 
not  the  exclusive  property  of  the  rich,  whose  money  buys 
its  materials  and  pays  for  its  erection,  but  it  is  likewise  the 
possession  of  the  poor,  whose  skillful  hands  and  strong 
arms  have  laid  deep  its  solid  foundations  and 
will  raise  aright  its  stupendous  walls  and  lofty 
towers.  This  gi-and  and  magnificent  hall,  with  its 
beautiful  and  inviting  grounds,  and  its  elaborate  and  taste- 
ful ornaments,  when  completed  by  us,  the  servants,  and  de- 
livered over  to  our  masters,  the  people,  will  then  stand  not 
only  as  a  proud  and  living  monument  of  the  bounty  and  mu- 
nificence of  the  more  fortunate  owners  of  the  property,  whose 
thrifty  proceeds  shall  have  paid  the  final  farthing  of  its  pur- 
chase price,  but  will  at  the  same  time  rear  its  monstrous  head 
and  lift  its  piercing  pinnacles  in  bold  relief,  as  an  humble 
but  enduring  memorial  to  the  genius  and  enterprise  of  their 
less  fortunate  brothers,  whose  trained  hands  and  steady 
nerves  spread  the  uniting  mortar  and  gluing  cement,  and  laid 
the  connecting  bricks  and  binding  stones,  and  attached  the 
fitting  joints,  and  drove  home  th^  clinching  nails;  and  whose 
physical  endurance  and  patriotic  devotion  must  ever  guard 


297075 


30 


and  protect  it  against  the  ravages  of  storm  and  flood  and 
flame,  as  well  as  from  the  incursions  of  internal  enemies  and 
the  invasions  of  foreign  foes.  Selfish  indeed  must  be  the 
makers  of  law — arbitrary  indeed  must  be  the  law  itself^ — cruel 
indeed  must  be  the  decree  under  it — and  tyrannical  indeed 
must  be  the  executive  who  administers  it — that  will  say  that 
these  men  and  their  descendants  shall  have  neither  voice  nor 
opportunity  in  the  great  work  of  the  internal  improvements 
of  the  country  which  they  love  so  well,  and  by  whose  lives 
they  defend  so  bravely. 

No,  my  friends;  such  cannot  be  the  intent  nor  the  spirit 
of  the  law.  It  cannot  mean  to  disfranchise  the  great  body 
of  our  needy  and  worthy  citizens  for  the  benefit  of  a  favored 
and  unneedy  few. 

No;  it  is  broad  enough,  and  liberal  enough,  and  just 
enough  to  reach  the  cases  and  meet  the  wants  of  hundreds, 
and  I  may  say  thousands,  of  your  industrious  but  suffering 
fellow-citizens,  with  families  and  dependencies  upon  their 
hands,  who  are  willing  to  work,  but  can  get  nothing  to  do, 
and  for  whom  I  feel  and  fear  that,  if  all  this  labor  is  suffered 
to  take  the  other  course,  it  will  drift  into  the  same  old  chan- 
nels, and  follow  the  same  old  ruts,  and  run  by  or  beyond 
those  whom  it  ought,  in  all  conscience  and  justice,,to  benefit. 

No  government  can  long  prosper  or  endure  which  makes  a 
practice  of  putting  wp  the  public  labor  of  its  country  by 
public  auction  to  the  lowest  bidder. 

Neither  this  nor  any  other  city  can  afl'ord  to  make  a  profit 
oft*  of  the  labor  of  its  citizens,  which  it  requires  on  its  public 
works,  nor  to  put  in  the  power  of  others  to  do  so. 

It  will  never  in  the  end,  nor  at  any  other  time,  pay  this  or 
any  other  city  to  engage  in  the  business  of  constructing  its 
public  buildings,  carrying  on  its  public  works,  or  making  its 
public  improvements  at  the  expense  of  the  labor  of  its  peo- 
ple, nor  to  sufter  others  to  do  so. 

Neither  this  nor  any  other  city  can  hope  to  build  itself  up, 
and  become  great,  upon  the  margins  to  be  realized  from  the 
toil  of  its  citizens,  either  by  its  own  agency  or  through  the 
agency  of  others.  No  city  can  ever  hope  to  make  a  prosper- 
ous and  happy  community  by  robbing  its  people  of  their 
earnings,  and  stealing  from  them  their  living,  either  directly 
or  indirectly,  under  the  disguise  of  frugality  or  the  pretense 
of  economy. 

I  lay  it  down  as  the  duty  of  all  government,  and  of  every 
city,  to  so  employ  and  reward  the  labor  of  its  citizens  as  to 
leave  them  a  living  profit,  and  afford  them  a  saving  margin; 
and  I  declare  that  this  duty*  ought   to  address  itself  to,  and 


31 


impress  itself  upon,  the  good  sense  and  sound  judgment  of 
each  and  every  citizen,  be  he  rich  or  poor,  in  power  or  out 
of  power. 

This  proposition  is  the  true  principle — this  proposition  is 
the  correct  interpretation— this  proposition  is  the  right  prac- 
tice— ^this  course  will  set  the  proper  example — it  will  establish 
the  only  just  rule — and  will  open  up  the  road  leading  to  better 
times,  and  better  places  to  the  industrial  classes  in  our  midst, 
in  both  public  and  private  enterprises. 

This  action  will  bear  courage  to  many  a  drooping  heart. 
It  will  carry  bread  to  many  a  starving  woman  and  child.  It 
will  restore  the  family  to  many  a  broken  and  scattered  home. 

It  will  inflict  no  injury  upon  the  city — it  will  do  no  wrong 
to  any  one — but  will  give  a  clear  conscience  to  this  Commis- 
sion, and  do  untold  good  to  this  people. 


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D3M9  -  Argument  of" 

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